Description and Evaluation in Jurisprudence

Abstract

In the last two decades or so a view that has emerged among legal theorists is that while legal theory is evaluative because it requires making judgments of importance, it can remain morally neutral. This view, which I call the “orthodox view,” was first articulated by Joseph Raz, and has since then been supported also by many other prominent legal theorists, and was defended at length by Julie Dickson. In this essay I examine it, and argues that it is indefensible. I begin by examining the terms “description” and “evaluation,” and show that they are ambiguous in a way that most current discussion do not realize. I then rely on this to examine both the specific details of Dickson’s defense, in particular with regard to her discussion of the views of John Finnis and Ronald Dworkin, and argue that her criticism of their view misfire because she misrepresent their positions. I then turn to the more general question and show that defenses of orthodox view have not addressed at least four arguments against the orthodox view. Of those defenders of the orthodox view have considered only one, and even here, I contend, their arguments are unsuccessful.